Wednesday, June 10, 2009

During the World Copyright Summit, Sen. Orin Hatch (R-UT), gave the keynote address on the first day of the event, held here in Washington DC at the Ronald Reagan Building. During the address, Sen. Hatch stated that he was actively working to get orphan works legislation passed this Congress.

Senator Hatch's remarks on the subject were:

I also continue to be very active on passing orphan works legislation.

Last year, the Senate unanimously passed bipartisan legislation to encourage the use of orphan works - works that may be protected by copyright but whose owners cannot be identified or located. Countless artistic creations - books, photos, paintings and music - around the country are effectively locked away and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown.

Unfortunately, it often isn’t easy to identify or find these owners of copyrighted work. To make matters worse, many are discouraged or reluctant to use these works out of fear of being sued should the owner eventually step forward.

For years, I have been working with industry stakeholders and copyright experts, including Marybeth Peters, Register of Copyrights, to pass orphan works legislation. The bill seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works. I couldn’t agree more with Register Peters when she said, “A solution to the orphan works problem is overdue and the pending legislation is both fair and responsible.”

While it comes as no surprise that orphan works will return this term, such a public pronouncement, during a time when the Senate Judiciary Committee is taking up the nomination hearings for a new Supreme Court Justice, came as somewhat of a surprise. It would have been reasonable to expect that this would be in full discourse this Fall, however, when we contacted Sen. Hatch's office for a comment, his Press Secretary, Mark Eddington, provided us with this quote from the Senator:

(Continued after the Jump)

“Orphan Works remains an important priority for me. Last Congress, the Senate unanimously passed the legislation. I see no reason why Chairman Leahy and I can’t re-introduce this bill in the coming weeks.”

It could reasonably be expected that the bill that is re-introduced will be identical to the one that passed the Senate last session, and then all eyes will turn on Chairman John Conyers. Back in January, at the start of the 111th Congress, we wrote 111th Congress - Orphan Works Futurecast, which details Conyers' past positions as very Pro-IP.

With The President having both Houses of Congress, whatever final bill will have to have the blessing of the President. We detailed our reading of the tea leaves as it regards President's position at the same time, in Orphan Works in the Era of Obama.

It isn't likely that bills will sail through Congress and become law before September, but with a Senate bill dropping in the next few weeks, it would be very probable that the House would hold hearings during the early Fall.

5
comments:

"...to encourage the use of orphan works - works that may be protected by copyright but whose owners cannot be identified or located. "

This is pure arrogance!

Fair use already allows for appropriate, non-commercial use of such matter.

These orphan works initiatives are driven primarily by the desire for commercial appropriation under the guise of solving a problem that does not really exits.

Appropriation of property, intellectual or otherwise, without compensation, would likely prove to be unconstitutional.

The only legitimate change that even remotely could fall under these proposals, would be to address issues of archiving and backup, and these can easily and more properly be addressed through amendments to the fair use language.

While I realize that identifying genuine orphan works images might be worthwhile, one can only feel that the powers-that-be will assume "everything" is an orphan work and will be happy to pay the "small" penalty incurred for any misuse of a non-orphaned copyrighted image.

Canada has a version of orphaned works legislation already, has since 1990 I believe. It has been rarely used (all permissions are approved by an Order and are published online). I think people are overstating the threat this legislation poses.